No Violence to the First Amendment

As Congress prepares to take up the debate over violence on television, it is important for legislators to focus on whether the Federal Communications Commission will be able to regulate TV violence in a rational and even-handed way. I believe the answer is a resounding “no.”

In its report released last month, the FCC states that any definition of what constitutes “excessively violent programming” must be “sufficiently clear to provide fair notice to regulated entities.” While the commission admits that formulating such a definition will be “challenging,” it offers Congress little guidance.

According to the FCC, excessively violent programming “might” include “depictions of physical force against an animate being that, in context, are patently offensive.” And, in determining whether such depictions are “patently offensive,” Congress “could” consider “the presence of weapons, whether the violence is extensive or graphic and whether the violence is realistic.”

Given the wide array of programming with violent content—the FCC report mentions “cartoons, dramatic series, professional sports such as boxing, news coverage, and nature programs”—how would the commission implement any definition based on those guidelines? Does Schindler's List qualify as excessively violent and thus patently offensive? How about Saving Private Ryan? The Three Stooges? Road Runner? A nightly-news report on the Iraq war? A fight in a hockey game? Who knows?

Furthermore, the FCC's record on regulating indecency screams out against extending its authority to include violence. No matter how hard the commission may have tried to explain and apply its indecency standard in an objective, coherent and consistent manner, broadcasters are too often uncertain of what the commission will deem to be indecent.

For example, expletives in the film Saving Private Ryan are legal because they are integral to its artistic integrity. But the same expletives in a Martin Scorsese documentary on the history of the blues are somehow less integral and thus illegal. Calling someone a “bullshitter” is illegal, but “wiping someone's ass” is legal. Go figure.

The truth is that the commission is a political agency that is responsive to elected officials and acts in a highly political context—often problematic when the FCC is deciding spectrum allocation or economic regulation issues but particularly troubling when it is regulating content.

Coupled with the inherent subjectivity of defining what is “patently offensive,” that means three of five sitting commissioners would decide what is excessively violent at any given point in time. The result would be a significant chilling effect on broadcasters' programming and editorial decisions, with less creative and informative programming for the American public.

Such violence to the First Amendment would inflict greater harm than the violence on television. Congress should keep its powder dry.